Complainant

Respondent

Parties

Harmandeep  Singh

Dr Toruns Clinic Avicenna Medical Ireland Ltd

Representatives

Self-represented

No appearance by, or on behalf of, the Respondent

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00057536-001

05/07/2023

The Complainant was employed by the Respondent from 22 May 2023 until 22 June 2023 as a Practice Manager.  He worked 16 hours per week at an hourly rate of €30 giving a weekly salary of €480.

The Complainant alleges that the Respondent did not provide him with the statements of his terms and conditions as required under section 3 of the Terms of Employment (Information) Act 1994, as amended (the Act).

The Complainant submits that the Respondent offered him a position as a Practice Manager on 16 May 2023 at her new private practice.  Initially, his responsibilities involved shortlisting vendors according to the Respondent’s specifications to obtain computer hardware and software for her clinic.  This process required interacting with multiple vendors over several days with the final decisions resting with the Respondent.

Despite his repeated requests, the Complainant was not provided with his terms and conditions of employment as required under the Act.

The Complainant submits that when he asked the Respondent for a written statement of his terms and conditions, the Respondent’s adopted a negative attitude towards him, leading to a stressful environment.

The Complainant submits that, despite his repeated requests, he was not provided with the statement of his terms and conditions. 

The Complainant submits that as a result of the Respondent’s actions, he experienced considerable stress and ultimately resigned his position.

The Respondent did not attend the hearing into this complaint.  I am satisfied that the Respondent was on notice of the date, time, and location of the hearing.

Section 3(1) of the Act requires that:

“An employer shall, not later than 1 month after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

…

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

…

(ga) that the employee may, under section 23 of the National Minimum Wage Act 2000, request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section,]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

…

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made,

(n) the training entitlement, if any, provided by the employer,

(o) in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 [OJ No. L 327, 5.12.2008 p.9] on temporary agency work), when and as soon as known, and

(p) if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of—

(i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours,

(ii) the reference hours and days within which the employee may be required to work, and

(iii) the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and

(q) where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.

The burden of proof under section 3(1) of the Act lies with the Respondent.  As the Respondent did not attend the adjudication hearing, I was not provided with evidence from the Respondent.  Accordingly, I find that Respondent breached the provisions of section 3(1) of the Act in relation to the Complainant.

Section 3(1A) of the Act requires that:

“Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) [the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;]

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week,

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer's policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated,

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

(h) either—

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work;

(i) the date of commencement of the employee's contract of employment;

(j) any terms or conditions relating to hours of work (including overtime);

(k) where a probationary period applies, its duration and conditions.

Based on the uncontested evidence of the Complainant, I find that Respondent breached the provisions of section 3(1A) of the Act in relation to the Complainant.

While I have found that the Responded breached both section 3(1) and section 3(1A) of the Act in relation to the Complainant, it should be noted, however, that each separate infringement of section 3 of the Act does not entitle the Complainant to separate compensation. 

In accordance with my powers under section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened section 3 of the Act and that the complaints are well founded. I order the Respondent to pay to the Complainant compensation in the amount of €1,920 gross being the equivalent of four weeks’ pay, the maximum payable under the Act.

Failure to provide statements of terms and conditions